Liability of a Skier for Collision With Another Skier
This is the scope of the article of the same title published by American Jurisprudence Proof of Facts , 3d Series. For the complete article please contact West Publishing.
By James H. Chalat
There are over 10 million skiers in the United States. {Edmonson, "Skiing's Demographic Future," Ski Area Management p. 62 (January 1996)} In each of the past ten years the industry has attracted approximately 55 million skier visits per year at about 520 areas in the United States. A skier visit, or "SV," is defined by the industry as one skier/snowboarder skiing for one day at an area. There are about 800 ski areas in all of North America, serving about 70 million SV annually across the United States and Canada. {See, Harbaugh, "Ski Industry Consolidation or Financing 90's Style," Ski Area Management p. 51 (November 1997); McDowell, "Changing Skiing's Macho Image," New York Times p. 21 (2/15/97); Goeldner, "Economic Analysis of North American Ski Areas, 1976-93 (Business Research Div., Grad. School of Bus. Ad., Univ. Colo., 1994)}.
Over the past ten years, there has been a significant shift in the composition of the skier market. Snowboarders comprise a growing percentage the total SV in North America. The number of skiers has remained flat and some studies show that skiers' SV have actually declined over the past few years. Snowboarding has grown at a rate of 20% per year, and now comprises about 19 percent of all SV at North American ski areas. {See, Rowan, ed., "Boarding Gains Continue," Ski Area Management p. 25 (November 1997)} Snowboarding has become so popular, that many ski areas are dropping the word "ski" from their names, becoming "Ski and Snowboard Resorts" or merely "Resorts." {McDowell, "Changing Skiing's Macho Image" New York Times (2/15/97) p. 21}
Skiing safety has improved over time, with the improvement of alpine release bindings, heightened awareness of safety rules, and improved safety procedures at ski areas which were prompted in by risk management driven by concern over injury claims. See Chalat, "Ski Area Liability for Skiing Accident" 45 POF3d 115, 148 (West 1998)} The public awareness about ski safety has increased in the past year. {Brooke "High-Profile Skiing Deaths Put Spotlight on Head Injury Protection" New York Times p. 8 (1/7/98); Sullivan, "Skier in Fatal collision to Be Charged with Felony" The Denver Post p. B3 (5/24/97); "Fatal Crash Darkens Mood At Colorado Ski Resorts" Salt Lake Tribune p. B1 (5/4/97)} Commendably, ski areas have seen safety as a marketing factor. Skier safety rules appear on lunchroom napkins, ubiquitous signs, and on trail maps. Resorts have also taken steps to create zones within ski areas for skiers of divergent abilities, such as for "Slow Skiing," children and family, while experts can try "Extreme skiing." Nevertheless, women continue to drop out of the sport, arguably in part due to safety concerns and an overblown male, risk-taking marketing message. {Witchel, "What do Mothers Want?" Ski Area Management (January 1996) p. 64; McDowell, "Changing Skiing's Macho Image" New York Times (2/15/97) p. 21}
Competition, among ski area operators is becoming more fierce as the industry consolidates. Competition is sharpest in the ski lift department. New, high speed, high capacity lifts are a readily visible improvement which may give one area a boost over its neighbor.
Lift capacity is measured in Vertical Transport Feet Per Hour (VTF/Hour). VTF/Hour is the vertical feet which the lift climbs multiplied by the lift's skiers per hour capacity. VTF/Hour has grown at an annual rate of 4 percent, while the skiable terrain for ski area's has grown by only 1 percent per year. {Goeldner, "Economic Analysis of North American Ski Areas, 1976-93 p. 2 (Business Research Div., Grad. School of Bus. Ad., Univ. Colo., 1994}. This means that although the total number of skiers and snowboarders remains steady, they spend less time on lifts and more time on the slopes as the VTF/Hour has increased. Because the acreage has not increased, skier density has increased. One study, conducted on a small scale, concluded that an increase in lift capacity, without a concomitant increase in terrain, increases the risk of a skier versus skier or snowboarder collision. {Lystad, "Collision Injuries in Alpine Skiing," Skiing Trauma and Safety, Seventh International Symposium (ASTM STP 1022)}
These factors have a heightened awareness of skier safety, and a public awareness that a claim may follow a skiing collision. Some of the earliest ski accident cases arose from skier collisions. Davis v Erickson, 345 P.2d 942; Ninio v Hight, 385 F2d 350; Seidl v Trollhaugen, 232 NW 2d 236. Generally, courts applied principles of ordinary negligence. Seidl v Trollhaugen, 232 NW 2d 236.
However, as early as 1967, an appellate court considered whether to instruct the jury on a special "rule of the road," applicable to skiing - that an overtaking skier is required to yield to skiers below which were peculiar to skiing. The court did not rule, as a matter of law, that the uphill skier must yield. The court did apply a rule of law taken from the context of automobile accidents, that to look but fail to see that which must have been plainly visible, was the same as failing to look at all. Ninio v Hight, 385 F2d 350, 351.
The laws differ, from state to state, on the duty of care one skier owes to another, in a skier collision case. The jurisdictions can be divided into two classifications. The prevailing view is holds skiers to a standard of reasonable care to avoid injury to another skier. The standard of care is usually founded on a statutory principle obliging a skier to exercise reasonable care, to yield the right of way to the skier below. One skier does not assume the risk of another's negligence; a skier collision is not a risk "inherent" in the sport. Skiing is not a contact sport. {For example, Ulissey v Shvartsman, 61 F3d 805; Novak v Virene, 586 NE2d 578; Martin v Luther, 642 NYS2d 728.}
In California, a claim by one skier against another for simple negligence, is barred as a matter of primary assumption of risk, under the "co-participant" rule. Absent reckless, wanton or intentional conduct, the injured skier is not permitted to recover. Cheong v Antablin, 946 P.2d 817. Yet a third rule has been announced by a federal court, applying Vermont law. There, the jury was instructed that they were to determine whether the collision was an inherent risk of skiing, thus allowing the collision to be considered as a matter of secondary assumption of risk. Dillworth v Gambardella, 970 F2d 1113.
From the practitioner's standpoint, therefore, skier collision cases can be serious, and comprise a genre of personal injury action which is becoming more common and more complex.
This article addresses the proof of liability for collision with another skier. Snowboarders, sledders, tobaggoners, and enthusiasts who use non-conventional equipment such as ski-boards, mono-skis, are treated as having equivalent rights, responsibilities, duties and liabilities as skiers. The article reviews the historical development of the rule of a skier's liability for collision and the current common law and statutory duties.
2001 Worldwide Copyright of Chalat & Koupal PC, Revised 8/1/01, LJC
